Neill and Holmes

[2017] FCCA 1912

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEILL & HOLMES [2017] FCCA 1912

Catchwords:
FAMILY LAW – Parenting – Third round of proceedings – where orders were made in 2012 after a defended hearing for the father to spend time with his two daughters but where time ceased in April 2015 – where the mother said that the children were refusing to spend time with the father because of his treatment of them – where the mother has claimed for years that the father is a violent man – where the mother sought a no time and no communication order – where the father filed a response seeking a change of residence alleging parental alienation – where the father has always denied all allegations of violence – where the matter was listed for hearing in June 2017 – where in February 2017 the father was charged with assaulting his 15 year old step-daughter (which according to the police report involved bashing and injuring her) and subsequently pleaded guilty to assault – where the father is awaiting trial on more serious charges arising out of the incident – where the father filed a Notice of Discontinuance three days before the hearing was due to commence – matter heard on an undefended basis – order made for no time and no communication.

Legislation:

Family Law Act 1975, s.60CC

Hemmingway & Holmes [2012] FamCA 17

Applicant: MS NEILL

Respondent: MR HOLMES

File Number: NCC 669 of 2007

Judgment of: Judge Terry

Hearing date: 26 June 2017

Date of Last Submission: 26 June 2017

Delivered at: Newcastle

Delivered on: 26 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Mooney

Solicitors for the Applicant: Arnold Lawyers

The Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Mr Bateman

Solicitors for the Independent Children’s Lawyer: Hunter Family Law Centre

ORDERS

1. All previous Orders relating to the children X born (omitted) 2006 and Y born (omitted) 2006 (“the children”) are discharged.

2. The children shall live with the mother.

3. The mother shall have sole parental responsibility for the children.

4. The children shall spend no time with the father.

5. The father shall not communicate with the children by any means including but not limited to in person, by telephone, text message or social media.

6. The Independent Children’s Lawyer shall forthwith provide to the Director General of the NSW Department of Family and Community Services copies of the following:

   (a)The Family Report dated 11 August 2016;

   (b)The Final Orders made today; and

   (c)The Reasons for Judgment.

7. The mother shall be permitted to provide the children’s respective counsellors or psychologists copies of the following:

   (a)The Family Report dated 11 August 2016;

   (b)The Final Orders made today; and

   (c)The Reasons for Judgment.

8. Pursuant to Section 68B of the Family Law Act 1975 the father shall be and is hereby restrained from:

   (a)Communicating or attempting to communicate with the mother or the children;

   (b)Approaching or remaining in an area within 200 metres of the mother or the children;

   (c)Approaching or remaining in an area within 200 metres of the place of residence of the mother or the children;

   (d)Approaching or remaining in an area within 200 metres of the place of education/work of the mother or the children; and

   (e)Causing or permitting any third person to do or perform any of the actions listed above in Order 8(a), (b), (c) or (d).

9. The Independent Children’s Lawyer’s application for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Neill & Holmes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 669 of 2007

MS NEILL

Applicant

And

MR HOLMES

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt made to render the judgment amenable to being read.

2. I have to make a decision about parenting arrangements for two girls, X born on (omitted) 2006 and Y born on (omitted) 2006. 

3. The mother proposes that all existing parenting orders are discharged, that she has sole parental responsibility for the children and that they live with her and spend no time with and have no communication with the father. 

4. The Independent Children’s Lawyer supports that proposal.

5. The father was seeking an order that the children live with him, it being his case that the children have refused to see him for the last two years because of parental alienation. However three days ago he filed a Notice of Discontinuance. This was clearly due to the fact that in February 2017 he was charged with serious offences in relation to one of his stepchildren and had pleaded guilty to some of the charges although some are to be the subject of a hearing.

The evidence

1. The mother gave evidence before me and subpoena material relating to the charges against the father was tendered. 

2. I also had before me a family report prepared in August 2016 by Ms F, a family consultant.

Background

1. The parents had a fairly short relationship. They separated when the children were very little and subsequently the children lived with the mother and spent time with the father.   

2. There were proceedings between the parties in 2007 and 2008 which resulted in consent orders being made.

3. Commencing in 2010 there were proceedings in the Family Court which involved serious allegations by both the mother and the father about the conduct of the other and about the treatment of the children and ultimately a hearing was conducted.

4. The mother alleged that the father had been violent to her during their relationship and that he was physically and perhaps sexually abusing the children. She also alleged that there was family violence in the father’s relationship with his partner Ms K.

5. The father alleged that something had happened to the children at the hands of the mother’s partner Mr W.

6. The trial judge ruled that there was no substance in the allegations about the children having been physically or sexually abused by the father. He considered that the allegations about family violence between the mother and the father was historic and should not inform his decision and he found that there was no substance in the allegations concerning Mr W.

7. The trial judge did find that there was an appalling level of dysfunction in the relationship between the mother and the father which was seriously impacting on the children and on 27 January 2012 he made orders that the children live with the mother, that she have sole parental responsibility for them and that the father spend time with them each alternate weekend from Friday to Sunday and for half of the school holidays.[1]

   [1] Hemmingway & Holmes [2012] FamCA 17

8. The father’s family constellation at that time consisted of his partner Ms K, Ms K’s children A & B and his and Ms K’s daughter C.

9. After the 2012 orders were made, the mother complied with the orders as she was required to do absent applying to discharge them and X and Y spent time in that household. 

10. Difficulties continued however and by April 2015, the children’s complaints about what was happening in the father’s household had reached such a level that the mother ceased to comply with the orders and the children ceased spending time with the father.

11. The mother filed an application seeking to discharge the 2012 orders and proposing that the children spend no time with and have no communication with the father. The father cross-applied for an order that the children live with him. It was his case was that the mother was alienating the children.

12. On 16 February 2016, a child inclusive child dispute conference was conducted and the following appears in the memorandum under the heading “Family Violence”:

    The children report that the father and his partner have denigrated the mother and her husband, including calling the mother a variety of names such as ‘cunt’ and ‘dog’ in their presence. The children report that the father and his partner have been both emotionally and physically abusive towards them and that they routinely punish them by making them brush their teeth with soap and by physically smacking, slapping and kicking them. The children report that they witnessed a physical confrontation between the father and his eldest stepdaughter which involved the father pinning the child up against a wall by her neck. This child subsequently left the home and has not returned. The children report that the father has ignored phone calls from the mother, refusing to let them speak to her when they have been in his care. The children report that the father has threatened to harm them with a knife and that they have reported this to other professionals such as teachers and counsellors. [2]

    [2] Child Inclusive Child Dispute Conference Memorandum dated 16 February 2016.

13. The father maintained that there was no truth in the allegations and a family report was ordered and interviews were conducted in August 2016.

14. The family consultant summarised as follows in the report the events which occurred since the making of the 2012 orders:

    The subpoenaed material indicates that the ‘unremitting conflict between the parties’ has continued unabated, including in public venues (for example: the school fete incident in October 2015). The communication book, intended to facilitate the exchange of parental information, has been used by the father to criticise the mother’s parenting practices and to undermine her parental authority. It is documented that X was reportedly encouraged by the father to make further false allegations about her stepfather to school staff in April 2014 and that  the father asked Police to carry out welfare checks on the children while they were in the mother’s care during 2015. The children have been immersed in the acrimonious parental conflict and subjected to the sort of loyalty demands described in the previous Family Report; as was predicted, the impact on the children to date has been catastrophic.

    Both girls are currently refusing to spend time with the father or his family, with documented reports of abuse perpetrated by the father and his wife being made by the children to the mother and her family – as well as to school staff, medical practitioners, social workers and psychologists (including the family GP & X’s psychiatrist), the Child and Adolescent Mental Health Team, FACS staff and to the Police. These reports have been documented by a wide range of professionals, many of whom are mandatory reporters, over an extended period of time following the 2012 Orders. A large percentage of the reports are based on information obtained directly from the children and, at times, the injuries sustained by children have been photographed and the explanations given by the children for the injuries have been documented by these mandatory reporters.

    These reports concern physical abuse (documenting bruising sustained by the children as a result of allegedly being hit, punched, pinched and slapped by both the father and his wife – who has also reportedly thrown things at the children), verbal abuse (with the children reporting to professionals that they are called derogatory names such as ‘ugly’, ‘little bitches’ and ‘cunt’ by the father), threats to harm (including with a knife) and extreme psychological/emotional abuse (leading to symptoms suggestive of Post-Traumatic Stress Disorder, including clinical levels of depression and anxiety, recurrent nightmares and other somatic symptoms such as headaches, nausea and stomach pains). [3]

    [3] Family Report paragraphs 9-12

15. At the family report interviews the children told the family consultant that the father had hit the oldest step-daughter A with a jockey whip. X said that the father had been given the whip by an uncle who rides horses and that he used it to hit A on her legs.

16. The father and Ms K agreed that A had left their home but told the family consultant that A had invented the allegations of mistreatment and that they had been assured by authorities that they accepted that this was true. They strongly denied any wrongdoing in relation to A, Y and X.

17. The younger step-daughter B, then 14, was interviewed for the purposes of the family report. She told the family consultant that her stepfather was a good person, that he had never hurt anyone in her home and that she loved him and was not afraid of him. She said that she missed her stepsisters. 

18. When B was asked about A and what had happened to her, she shrugged and looked uncomfortable.

19. The family consultant, who had prepared the family report for the earlier proceedings, was extremely concerned about the allegations the children were making about the treatment of them and of A. She was extremely concerned about the high level of dysfunction that had continued to occur in the family and about the impact it was having on the children and she recommended that the children live with the mother, that the mother have sole parental responsibility and that the children spend no time with the father.

20. The father did not accept those recommendations and the matter was listed for trial on 26, 27 & 28 June 2017. 

21. However on 23 June 2017 the father discontinued his application.   

22. At the hearing on 26 June 2017, COPS records were tendered which revealed that the father had assaulted B, now 15, on Saturday 11 February 2017. The details of what occurred make upsetting and disturbing reading.

23. According to the COPS records there was some upset in the father’s home that day as a result of B wanting to go to her boyfriend’s house and the father saying no. The dispute escalated and Ms K became extremely upset and picked up a knife and held it in a manner suggesting self-harm. Ms K’s distress apparently arose from the fact that B did not want to attend a lunch as a result of all that was happening in the family.

24. The father came into the room and saw Ms K holding the knife and started to blame B for what had happened. B was fearful for her safety and began to walk backwards and the father stood in front of her and began to punch her. He punched her in the arm. She crouched down to try to protect herself. The father continued to punch her to the ribcage, left jaw and ear causing immediate pain.

25. Ms K and six-year-old C tried to intervene to stop the assault.

26. Eventually the father ceased punching B and Ms K acted out by picking up a chair and hitting it against the ground. C was extremely upset and crying and B had a number of large bruises and swellings as a result of the assault.

27. The father did not stop though. He grabbed B by the hair and dragged her through the lounge room and down the hallway and said, “Now go and do your hair”. A little bit later on he took her mobile telephone and smashed it. 

28. When B was setting off for school on Monday 13 February 2017 the father said to her:

    Just remember if you say anything or if I get put away for the night, when I come out I will kill you. Don’t think I’m joking because I will.

29. B did not return home from school and she subsequently received medical treatment and police were notified. Her injuries were photographed and the father was charged with two counts of assault occasioning actual bodily harm, two counts of common assault, one count of damage or destroy property and two counts of stalk intimidate.

30. The father pleaded guilty to the assault and damage or destroy property charges but not guilty to the charges of assault occasioning actual bodily harm and stalk intimidate and those charges are due to be heard on 4 July 2017. 

31. This incident gives the lie to every denial the father has ever made in these proceedings about violence to the mother, Ms K, his step-daughter A and to the children.

The children’s best interests

1. I have to make orders which are in the children’s best interests and there is absolutely no doubt that the children would be at unacceptable risk of harm if they spent any time with the father. He is a violent, dangerous man. There is also no doubt that the children would not be able to psychologically cope with spending time with the father. 

2. In the family report the family consultant expressed the view that the children had suffered psychological damage, serious psychological damage, as a result of what they had been exposed to by father’s conduct over the years.

3. I could not remotely consider making an order that the father spend time with the children. It would contrary to the children’s wishes. They are terrified of the father and are strongly opposed to spending any time with him. There are a number of pieces of evidence about the children being avoidant of the father, being frightened when they see him in public places and being strongly resistant to spending any time with him.

4. The children will not have a relationship with the father if they spend no time with him but this father has nothing to offer these children other than exposure to conflict and harm. 

5. I am satisfied that the mother is doing a good job caring for the children. She must be relieved that this is all at an end and that the father’s true nature has finally been exposed. She said that the children were starting to blossom as a result of not spending any time with the father. X is a keen (hobby omitted). I hope she has a (hobby omitted) and that goes somewhere for her. Y is interested in (hobby omitted). The children are finally starting to come out of their shell and are emerging from the stress and pressure caused by the dangerous situation they have been in.

6. The mother is living with her partner Mr W with whom the children have a good relationship. They have two little sisters in the household; D and E.  The children are extremely fond of their sisters. At the family report interviews a good relationship was observed between the children and their mother, Mr W and their little sisters.

7. The only possible order I can make in this matter is that the mother has sole parental responsibility for the children and I am going to make that order. I am otherwise going to make orders generally in terms of the orders proposed by the mother and the Independent Children’s Lawyer.  They will include a no time and no communication order. 

8. The father’s solicitor did not attend court today but Counsel for the Independent Children’s Lawyer tendered a letter he sent to the mother’s solicitor and the Independent Children’s Lawyer dated 15 June 2017. It reads as follows:

   We have previously acted for Mr Holmes.

   Mr Holmes has advised our office he is filing a Notice of Discontinuance.

   He does this with reluctance but his poor health prevents him continuing in the proceedings. He is deeply saddened that he has not seen his daughters for more than two years.

   We have known Mr Holmes for several years and we are disappointed that the Legal Aid Commission would not provide funding to support his case.

   It is heartbreaking for Mr Holmes that his children will not know their paternal family, half-sister and step siblings. As you are aware our client suffers cardiomyopathy and his life span will not be long.

   Our client would be grateful if the Independent Children’s Lawyer would be good enough to tell the children that their father is not continuing the court proceedings, but he wishes them to know that he loves and misses them and should they ever wish to see him or the paternal family, the door is always open.

9. In the light of what happened to B, the statement in the letter that it is heartbreaking to the father that his children will not know their paternal family, half-sister and stepsiblings is nothing short of revolting. 

10. The letter speaks volumes given the offences and the pleas of guilty because it indicates that the father accepts no responsibility for his extremely violent actions and does not acknowledge the nature of his actions and in those circumstances there is no prospect of any change occurring in relation to his behaviour. The letter reinforces my view that it would be totally contraindicated to ever consider making an order for the father spend time with the children.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:       15 August 2017